Judges Weigh In On Prosecutor Said To Have Withheld Evidence02:04

Copy the code below to embed the WBUR audio player on your site

A high-stakes legal battle waged on a slow clock has moved into federal court in Boston. A panel of three federal judges is considering if and how they should discipline a longtime local federal prosecutor.

Assistant U.S. Attorney Jeffrey Auerhahn is accused of denying two defendants their rights to a fair trial.

The judges sat at the bench at the end of a tortuously long trial that began in 2003. That's when Judge Mark Wolf ruled that Auerhahn had essentially hidden evidence that his chief witness had admitted to lying about a murder.

Seven years later, Auerhahn himself was the defendant in an extraordinary — indeed unprecedented — public disciplinary proceeding in the federal court in Boston.

"There is a huge criticism in the legal community that prosecutors are not punished. There are a lot of eyeballs watching this case hoping some discipline is handed out."

David Frank,
Lawyers Weekly

"So because microphones aren't allowed in a federal courtroom, and because the parties — the principals in this case — aren't allowed to talk to you and I, you being David Frank of Lawyers Weekly, you are probably one of the few witnesses in that room who can talk about it. How would you characterize the case made by the bar counsel?" I asked Frank.

"What the Office of Bar Counsel is saying is that Jeffrey Auerhahn had at his disposal information that had to be turned over," Frank said.

The hearing had the form of closing arguments, but the judges interrupted with questions. The prosecutor here, Nancy Kaufman, of the Office of Bar Counsel, is seeking to have Auerhahn suspended for two years. Instead of seeking justice, she told the judges Thursday, he sent two men to prison as a result of his misconduct.

"And the analogy that I thought the bar counsel effectively made was that Jeffrey Auerhahn played the role of judge and jury," Frank said. "And what the Office of Bar Counsel is arguing is that he doesn't get to make those kinds of decisions. He has to turn that material over."

The findings are extensive from both the trial judge in 2003 and the appeals court in 2006. Both ruled that Auerhahn had committed misconduct. But Thursday, this panel of judges seemed to be in the weeds at times. Auerhahn's defense team, however, kept their argument clear and straightforward.

"At best, the Office of Bar Counsel's case amounts to negligence, that it is certainly not the suborning of perjury, it's certainly not intentional misconduct," said Michael Ricciutti, who was leading the team of private lawyers representing Auerhahn at the expense of the Department of Justice. "There is no one who can get on the stand and say Auerhahn knew (his witness) was lying."

And then citing some of the city's big name defense attorneys who'd written letters of support, he spoke of Auerhahn's outstanding reputation for integrity.

"One of the most compelling parts of today's hearing was when Auerhahn's lawyers were saying that ifthese three federal judges make any decision in terms of discipline, his career is over," Frank said.

Big stakes for Auerhahn, big stakes for the judges who previously found Auerhahn's behavior "outrageous" and "egregious" and freed two men from prison, big stakes for the justice system.

"There is a huge criticism in the legal community that prosecutors are not punished. There are a lot of eyeballs watching this case hoping some discipline is handed out," Franks said.

And big stakes for the local U.S. Attorney's Office that has been under long storm clouds of suspicion from a number of directions. Frank says that office — where Jeffrey Auerhahn is still working — will feel as vindicated as Auerhahn if the judges impose no discipline.

Seven years later, the judges said they'll take the matter under consideration.